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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Davis [1837] NSWSupC 3

attempted murder - Lord Ellenborough's Act - provocation - women defendants in crime - Bathurst

Supreme Court of New South Wales

Dowling A.C.J., 7 February 1837

Source: Sydney Gazette, 9 February 1837[ 1]

Catharine Jane Davis stood indicated for assaulting at Bathurst, on the 10th of October, 1836, one John Cooper Murphy, by stabbing him with a knife on the left side, with intent to murder, or do him some grievous bodily harm.

John Cooper Murphy, examined - I am clerk at Bathurst; I first saw the prisoner at a person's house named Enright; I was after procuring half a gallon of rum at Mrs. Dillon's; I was then quite sober; lying asleep on a bed in one corner of the room; I lay down, but before so doing, Enright, his wife, and another man, drank some of the spirits; Mrs. Enright made a bed for me in the room with herself and husband; the prisoner slept in the outer room; I rose early, having occasion to go outside; Enright, on my return said the young woman is without a bed fellow; I approached the bed, and she made room for me; I laid down two half crowns; on rising the prisoner jumped out of bed, seized me by the jacket, and said I should not go; I then sent for another half gallon of rum; I proceeded to Sheldon next morning, and on my return to Bathurst on passing Enright's prisoner followed me, and enquired if I had any money; I replied in the affirmative, and produced two £1 notes, and a shilling; the female and Mrs. Enright, during Enright's absence, enticed me into a small room, where I drank about a gill of rum; at the invitation of Enright I remained at the house during that night; the prisoner did not sleep there on that night; she was there next morning, and I overhead her tell two men that I had money, having seen two pound notes with me the day previous, on turning round on hearing this observation, and observing Enright sharpening a knife, I struck prisoner; the blow drew blood; in about ten minutes after prisoner came out, and stabbed me with all her force under the left arm; in a little time after the prisoner came to me, and said ``she was sorry for stabbing me and that she should abide by the result."  I proceeded as far as constable Regan's, and on my arrival I fell on my face; the prisoner was not perfectly sober; she had been drinking; the knife that I saw Enright sharpening was the one with which she stabbed me.

Mrs. Roche examined - I am a constable's wife residing at Bathurst; my residence is about ten minutes walk from Enright's; on the 10th of October the prisoner came to my house in search of my husband to surrender herself, she having stated that she stabbed a man; on going outside I saw Murphy and Enright, the former was bleeding; the woman remained at my house about an hour and a half, until the return of my husband, who took her into custody; she appeared to be very sorry for what had happened, and made no attempt to get away; both Murphy and the prisoner were the worse for liquor.

Dr. Busby, examined - I saw Murphy outside of Roche's door, near Bathurst, on the 10th of October; he was lying, and appeared to be much exhausted from loss of blood; I examined the wound; it was about an inch in breadth, and a quarter of an inch in depth; it was a flesh wound, nothing more.  The prosecution closed here.

The prisoner in her defence stated, that when Murphy struck her she had the knife in her hand cutting tobacco, and that she followed him on the instant, and stabbed him.

The Chief Justice summed up at considerable length, pointing out to the Jury the full bearing of what is termed ``Lord Ellenborough's Act," and the further improvement of that Act by Lord Lansdowne, the allowance made by the Legislature for the frailties of human nature in retaliating a blow which may produce death provided that it was done on the instant, under excitement, and without reflection and commenting with merited severity on Murphy's conduct, in going about the country with half gallons of rum &c.  The Jury, after a moment's consultation, acquitted the prisoner.

On the announcement of the verdict, His Honor directed that Murphy's expences [sic] should be withheld.

[This seems to us a most extraordinary verdict. - Eds.]




[1 ] See also Sydney Herald, 9 February 1837; Australian, 10 February 1837; and see Dowling, Proceedings of the Supreme Court, Vol. 131, State Records of New South Wales, 2/3315, p. 51.


Published by the Division of Law, Macquarie University